concurring in the judgment of the majority OP THE COURT; — THAT APPELLANTS WERE ENTITLED TO ONE nALF OP THE USE OP TIIE CHURCH PROPERTY — HUT DISAGREEING AS TO THE LAW AND REASONING LEADING TO SUCH CONCLUSION, DELIVERED THE FOLLOWING SEPARATE OPINION :
The Bethel Union Church of Presbyterians was organized in the year of 1828, and adhered to the General Assembly of the Presbyterian Church of the United States until the year of 1887, when, owing to divisions, the New School Presbyterians were excluded, and formed another General Assembly, to which the Bethel Union Church adhered, and so continued until in August, 1858', when, by the unanimous vote of its communicants, it returned to the Old School Church under Transylvania Synod of Kentucky.
The original deed to the church property now in controversy was made in the year 1857, whilst the Bethel Union Church adhered to the New School Presbyterians, but when it contemplated its return to the Old School Church, and only about a year before it did so actually return.
This deed was made to trustees in trust for the Bethel U nion Church of Presbyterians, without any designation as to which General Assembly it adhered to.
This deed being consumed with the clerk’s office and county records of Marion county during the late war, *139Penick, the original donor of the land, made and acknowledged a new deed to the “Bethel Union Church of Presbyterians adhering to the General Assembly of the United States.” Gartin and others having separated from adherence to said General Assembly, owing'to divisions growing out of its deliverances on the subject of loyalty and slavery during the war, subsequently withdrew their membership from said church, and had gone into a new organization, with entirely new officers, including elders and deacons. The Bethel Union Church, with its old officers and organization, by official action, recognized this withdrawal; and it was agreed between the two parties that they should occupy the church house on alternate Sundays in each month, and did so continue until just before this litigation began.
After the making of the last deed, Gartin and his friends brought suit to set up the destroyed deed and repudiating this one; whereupon, Penick and his friends brought suit to enjoin the other party from any use of the church property. These suits being consolidated and heard together, the court refused to set aside the last deed, and granted a perpetual injunction against Gartin and his friends from using or disturbing the others in the use of the church house and property, which they seek to reverse.
By section 3, chapter 14, 1 Revised Statutes, 236, ouLegislature has enacted that “ no church or society of Christians shall be capable of taking or holding the title, legal or equitable, to exceeding fifty acres of ground, but may acquire and hold that quantity for the purpose of erecting thereon houses of public worship,” &c.
By section 4 it is enacted, “ in casé a schism or division shall take place in a society, the trustees shall permit each party to use the church and appurtenances for di*140vine service a part of the time, proportioned to the numbers of each party.”
By subsection 5 it is provided, that “''the excommunication of one party by the other shall not impair such right, except it be bona fide on the ground of immorality.”
This statute, founded upon the sublimest morality and exalted equity, should have a liberal construction and application, so that it may accomplish the just mission for which it was enacted, in meting out to contending parties even-handed justice, and preventing one party, under the guise of religious rites, from perpetrating on the other a great moral wrong and injustice, shocking to the moral sense of every enlightened community, and an infliction on the sensitive justice of the civil laws; also, preventing the civil courts from being embroiled in those contentions growing out of religious differences, the most flagrant and vindictive of all others.
By section 6, chapter 1, of the Presbyterian Form of Government and Discipline, it is provided, that “ all baptized persons are members of the church; are under its care, and subject to its government and discipline ; and when they have arrived at the years of discretion, they are bound to perform all the duties of church members.”
And in “The Directory for the Worship of God in the Presbyterian Church of the United States of America,” as amended and ratified by the General Assembly in May, 1821, chapter 9, section 1, it is provided, that “children born within the pale of the visible church, and dedicated to God in baptism, are under the inspection and government of the church, and are to be taught to read and repeat the catechism, the Apostle’s creed, and the Lord’s prayer. They are to be taught to pray, to abhor sin, to fear God, and to obey the Lord Jesus Christ; and when they come to years of discretion, if they be free *141from scandal, appear sober and steady, and to have sufficient knowledge to discern the Lord’s body, they ought to be informed it is their duty and privilege to come to the Lord’s Supper.”
And by section 7, chapter 1, book 1, Form of Government, it is declared, “ that all church power, whether exercised by the body in general or in the way of representation by delegated authority, is only ministerial and declarative. That is to say, that the Holy Scriptures are the only rule of faith and manners ; that no church judicatory ought to pretend to make laws to bind the conscience in virtue of their own authority; and that all their decisions should be founded upon the revealed will of God.”
These things are quoted to show that infantá who are baptized into said church are recognized as members, and that it is enjoined upon the members to have their infant children baptized; and that all church power, instead of being inherent in the members, is merely ministerial and declarative, and founded upon the Holy Scriptures. In other words, that neither the separate churches, nor the aggregate thereof, in their separate church capacity and through their delegated officers, nor in their aggregated power in the higher church, judicatories, up to their supreme tribunal, the General Assembly, derive church power from the separate churches, any of their judicatories, or the church constitution; but that all comes from the Lord Jesus Christ, as found in, and authorized by, the Holy Scriptures.
If the Presbyterian form of government and church constitution and organization have no higher and holier sanction than that of mere mutual contract between its members, its pretense of being the true Church of God must indeed be a hollow sham.
*142But how can infants, without volition, void of understanding, and wholly- incapacitated to express an idea, contract or be contracted with ? Every writer on civil jurisprudence lays it down as universal law, that there must be parties capable of contracting, a thing to be contracted about, a consideration, and then an actual agreement, to make a valid contract.
In the Presbyterian Confession of Faith, chapter 23, section 4, allegiance to government is taught and inculcated as a religious duty. And in Baird’s Digest is to be found a pastoral letter upon the occasion of the old French war, anterior to our revolutionary war of 1776— one upon the repeal of the stamp act, and one upon our revolutionary war; and previously to the formation of the General Assembly, and subsequently to the adoption of the Constitution of the United States, a synodical address to Gen. Washington on his election to the Presidency; and, as late as the year 1836, the General' Assembly ratified these deliverances, saying “ they were our fathers’ principles.” (Digest, book 1, sections 7, 8, 9, 10, 14, 16.)
In 1787, before the formation of the General Assembly, the General Synod, then the highest church tribunal of Presbyterians, condemned slavery, and pledged the Presbyterian Church to do all in their power to promote its abolition, consistent with the rights of civil society.
The General Assembly in 1793, by way of ratification, ordered this deliverance to be printed as part of its records. In 1794, the General Assembly again expressed its deep regret at “ any vestige of slavery.” In 1816, it again expressed its regrets that African slavery still remained; and -its deliverance in 1818 contains this language: “We consider the voluntary enslaving of one portion of the human race by another as a gross viola*143tion of the most precious and sacred rights of human nature, utterly inconsistent with the-law of God.” (Minutes of 1818, p. 692, Baird's Digest.)
Strongly anti-slavery as were these deliverances of the supreme judicature of the church, Kentucky Presbyterians seem to have been but little, if any, behind.
In Davidson’s History of the Presbyterian Church of Kentucky, chapter 13, page 338, it will be found that the Kentucky Synod, in the year 1833, denounced “ slavery a great moral evil, and inconsistent with the word of God;” and in 1834, the Synod appointed a committee of ten to prepare a plan for emancipation, who published their report in a pamphlet of sixty-four pages, in the year of 1835, which Davidson, in his history, page 339, says “ fearlessly recounted the evils of slavery, its degrading influence, its dooming thousands to hopeless ignorance, its depriving them, in a great measure, of the privileges of the Gospel, its licensing cruelty, and finally its drawing down the vengeance of Heaven.”
This committee, says the author, consisted of Hon. John Brown, Judge Green, President Young, Thos. Porter Smith, Chas. N. Cunningham, J. R. Alexander, Robt. Stuart, Jas. K. Bunch, Nathan Hall, and W. L. Breckinridge, men of great weight. From these and other historical facts, it may be truthfully said, without a violation of its history or just cause of offense to its members, that not only the aggregate Presbyterian Church of the United States was strongly and radically anti-slavery, but also that the aggregate Presbyterianism of Kentucky largely partook of these anti-slavery proclivities. Nor was this abolition tendency of the church concealed or apologized for, but, on the contrary, fearlessly and boldly promulgated and gloried in. It may be somewhat a matter of astonishment that, with this boldly proclaimed and fear*144less anti-slavery history, the church made such wonderful progress among slaveholders; and when they had become respectable and influential because of their numbers, their wealth, intelligence, and talents of their ministers, all that they sought or could obtain from their highest church judicatory was a guarded, feeble, and, to say the least, a questionable recognition that slaveholders might, per possibility, be Christians, as is fully indicated by the humiliating question, and the answer thereto, propounded to the General Assembly of 1845, as follows: “ Do the Scriptures teach that the holding of slaves, without regard to circumstances, is a sin, the renunciation of which should be made a condition of membership in the Church of Christ?” To which the Assembly respondedIt is impossible to answer the question in the affirmative without contradicting some of the plainest declarations of the word of God. That slavery existed in the days of Christ and his Apostles, is an admitted fact; that they did not denounce the relation as sinful, as inconsistent \yith Christianity; that slaveholders were admitted to membership in the churches organized by the Apostles; that whilst they were required to treat their slaves with kindness, and if Christians, as brethren in the Lord, they were not commanded to emancipate them. The Assembly cannot, therefore, denounce the holding of slaves as necessarily a heinous and scandalous sin, calculated to bring on the Church of Christ the curse of God, without charging the Apostles of Christ with conniving at sin, in introducing into the church such sinners, and then bringing upon them the curse of the Almighty.”
The guarded manner of putting this question, and the guarded answer thereto, were evidently intended as a mere bridge on W'hich slaveholders could pass into the *145church over the deep, wide, and strong current of abolition proclivities and sentiments which this church had unceasingly poured upon the American people, and not in the least intended as an indorsement of the institution of slavery, or a retraction of their long-formed and deep-seated anti-slavery sentiments, but a mere admission that, with the surrounding circumstances, slaveholders might be Christians.
Then, with its boasted anti-slavery history, its long-cherished antagonistic sentiments to that, institution, together with its cherished history of taking sides with the government under which it existed, in every war, inculcating, as it did, among its Articles of Faith, loyalty to the Government as a religious duty and a cardinal virtue, when the Southern States had withdrawn from the American Union with the avowed purpose of protecting their slavery institution, and which resulted in the late war, and the Southern Presbyterian Churches had withdrawn from the jurisdiction of the General Assembly of the United States, and formed an ecclesiastical jurisdiction of their own, adhering to the cause of the “Confederate States,” their antagonism to slavery, and their sentiment of loyalty, stimulated by the exciting surroundings, found a more violent and vehement utterance through their General Assembly, sanctioned, as they supposed, not only by their Articles of Faith, but under the plenary declared power found in section 5, chapter 12, Form of Government, “ of suppressing schismatical contentions and disputations; and, in general, of recommending and attempting reformation of manners, and the promotion of charity, truth, and holiness throughout all the churches under their care.”
*146Having lost their foothold in the Southern States, the strong incentive to the bridge of 1845, their long pent-up anti-slavery sentiments, reinvigorated and stimulated by the exciting revolutionary times, with an increased velocity and resistless current swept a,way that frail superstructure.
Turning now from the history of Presbyterianism as represented by the General Assembly of the United States, it will be instructive to take a glance at Presbyterianism as represented by the General Assembly of the “Confederate States.”
In the Synod of South Carolina, Old School, December 3, 1860, the report of the committee was unanimously adopted, containing the following extract: “ The Synod has no hesitation, therefore, in expressing the belief that the people of South Carolina are now solemnly called on to imitate their revolutionary forefathers, and stand up for their rights. We have an humble and abiding confidence that that God, whose truth we represent in this conflict, will be with us, and exhorting our churches and people to put their trust in God, and go forward in the solemn path of duty which His providence opens before them, we, ministers and elders of the Presbyterian Church, in South Carolina Synod assembled, would give them our benediction, and the assurance that we shall fervently and unceasingly implore for them the care and protection of Almighty God.” (McPherson's History of Rebellion, 508.)
The following is taken from the narrative on the state of religion of the General Assembly of the Confederate States, May 1, 1862: “All the Presbytérial narratives, without exception, mention the fact that their congregations have evinced the most cordial sympathy with the people of the Confederate States in their effort to *147maintain their cherished rights and institutions against the despotic power which is attempting to crush them.
“ Deeply convinced that this struggle is not alone for civil rights and property and home, but also for religion, for the church, for the gospel, and for existence itself, the churches in our connection have freely contributed to its prosecution of their substance, their prayers, and above all, of their members and the beloved youth of their congregations. They have parted without a murmur with those who constituted the hope of the church, and have bidden them to go forth to the support of the great and sacred cause, with their benedictions, and with their supplications for their protection and success. The Assembly desire to record, with its solemn approval, this fact of the unanimity of our people in supporting a contest to which religion, as well as patriotism, now summons the citizens of the country, and to implore for them the blessings of God in the course which they are now pursuing. In this connection, we would notice the fact that some of our ministers have entered the army as chaplains, and in the joint capacity of chaplain and soldiers, and are thus discharging a most important and useful office.” (McPherson's History of Rebellion, 513.)
In the address of their General Assembly of December 4, 1861, “to all the churches of Jesus Christ throughout the earth,” they say: “We are not ashamed to confess that we are intensely Presbyterian. We embrace all other denominations in the arms of Christian fellowship and love, but our own scheme of government we humbly believe to be according to the pattern shown on the Mount.” (Ib., 512.)
Whether, under the same article of faith, inculcating, as a Christian duty and cardinal virtue, loyalty to the government under which the church existed, or by the *148authority of some provision of the church constitution, there is a remarkable coincidence in the action of the two General Assemblies. The one espousing the cause of the United States and the abolishment of slavery, the other the cause of the Confederate States and the protection of slavery, became equally belligerent, recognizing and approving the respective causes of their respective governments as that of right, morality, and religion, countenancing, approving, and encouraging, if not advising, their respective members in engaging in this fratricidal strife ; but perhaps an apology may be found for both in their church history and action, not only in the United States, but as originally understood in Scotland. In Stuart of Pardovan’s Collection, book 1, page 15, section 25, it is said: “Church judicatures ought not to meddle, formally, with civil matters, no more than the State ought to meddle, formally, with matters ecclesiastic; but the object, materially considered, may be the same, and fall under consideration both of church and State, in different respect.”
If it be true that the Presbyterian Church is a homogeneous mass, with legislative, executive, and judicial powers combined in the same church authorities, and that all power is declarative and ministerial, and from the Lord Jesus Christ, as developed in the Holy Scriptures, and not inherent either in the individual members, separate churches, or church judicatories, it is hard to perceive why the Church Assemblies may not make deliverances on any question of morals or religion, though the same may also be matters of cognizance by the secular government.
Can there be any doubt that, notwithstanding the civ.il government permits as lawful the manufacture and retailing of ardent spirits, any church might prohibit its *149members from engaging therein, and for a violation of such rule exscind them, and thereby take away all their rights to the church property? Cannot this church, under penalty of exclusion, require of its members to observe the first day of the week as the Christian Sunday, notwithstanding the State permits the citizen to select, according to his own conscience, which of the seven days he will keep? Or, to put a still stronger case, whilst the Mormons, in Utah Territory, not only inculcate as a religious privilege and duty, but also authorize by law, a multiplicity of wives, can there be any doubt that all churches prohibiting this could, in said Territory, exscind their members therefor, and thereby deprive them of all church rights and interest? And any church has undoubtedly the same power, however unwise and unjust it might be, to prohibit the holding of slaves by its members, just as it may prohibit these things. With the policy and provident exercise of church power civil courts have nothing to do. If, under the declared powers in the Form of Government and the Articles of Faith inculcating loyalty as a religious duty and cardinal virtue, the General Assembly exercises more power than some of the individual members or churches deem compatible with their well-being and happiness, still this does not disprove the power, but rather evidences an infirmity in the church organization.
In section 2, chapter 1, Form of Government, it is declared, “ that in perfect consistency with the above preceding principles of common right, every Christian church or union, or association of particular churches, is entitled to declare the terms of admission into its communion, and the qualifications of its ministers and members, as well as the whole system of internal government which Christ hath appointed.
*150However uncharitable and unwise may have been the terms fixed for the admission into the church by the General Assembly of the United States since the close of the war, especially those of the same faith, yet, as a question of church power, under the above section, I apprehend there can be no doubt; nor, indeed, can it be doubted that all churches, in the very nature of things, must and do fix the terms of admission into their communion. Therefore, whatever I might think as an individual, as a judge I have no right to question the power; and, if disapproving as an individual, I can remain without admission.
Being strengthened by further investigation and observation in the views expressed in my dissenting opinion in the case of Watson et al. vs. Avery et al. (2 Bush, 363), that civil courts should never attempt to adjudicate ecclesiastical questions, and especially when determined •by the church judicatories, but should confine their decisions to the strictly legal aspect of the question, whether this results from the action of the party or church authorities, I have gone somewhat at length into this rather interesting church history.
- It may, perhaps, be proper to observe, that, as this slavex-y agitation in the church tribunals has been disastrous to the church, especially to the southern branch, so' its agitation in the civil courts will likely be the Trojan horse that will develop within its citadel a most devouring enemy to the southern churches of all denominations.
If civil courts, regarding church constitutions and organizations as civil contracts, look into the action of church tribunals, and pronounce them violations of such contracts, and, therefore, null, there will scarcely be an adjudicated question by such tribunals that may not be reviewed in a secular court, in one aspect or another, *151and under one pretext or another; and, of all other things this is most to be dreaded and shunned by the southern ehurcb.es of all denominations.
In all the Federal domain south of Kentucky, to what Csesar can they with confidence apply? Do the southern churches which identified themselves with the cause of the “Confederate States” desire that the civil courts, organized upon the negro-voting population of their States, should have jurisdiction to examine their church action, and test its validity by their church constitution as a civil contract? And is the destiny of these churches to be handed over to such civil courts that a few Presbyterian Churches in Kentucky may have the protecting care of her civil courts ? Except Kentucky, Maryland, and Delaware, to which of the thirty-six Supreme Courts of the American States would these churches look with confidence? Wflich of fifty District Courts of the United States, or, soon to be erected, nine United States Circuit Courts, would they prefer to their own tribunals? If church constitutions are to be regarded as civil contracts, and, therefore, cognizable in the civil courts, when the Form of Government, Discipline, Articles of Faith, and Church History shall be considered by these southern courts, and the rights of the Presbyterian Churches, in connection with the General Assembly, adhering to the Confederate States, shall be by them reviewed and adjudicated, who can predict the fatal result to those churches; but, were the sad consequences which may flow from such cognizance by those civil courts to stop with them, the result would not be so melancholy, since, by the action of their friends,'this devouring power has been invoked; but in this great civil maelstrom will be engulfed all other churches and denominations — the Methodist, Baptist, Episcopalian, Catholic, and Chris*152tian, and all others; for, when the jurisdiction of the civil courts over- the church constitutions and organizations, as civil contracts, is once firmly fixed, there will be but few questions, immediately or remotely affecting individual rights in church property, which may be adjudicated in ecclesiastical courts, that may not also be reviewed by the civil courts, and thus the independence of church courts will be destroyed, the freedom of the church from the State become a mere myth, and the church tribunals will have to defer to the decisions of the civil courts on their own constitutions and laws, instead of being referred to as true expounders of their own church constitution and doctrines, al] of which will finally prove equally disastrous to church and State; and when the most eminent divines and highest church judicatures of both divisions of this church, and both ecclesiastical jurisdictions, assert the power and act upon the subjects of slavery and loyalty, how a civil court can deny to them this power, I am at a loss to know.
Whatever may be the doctrine of the British courts, where there is an established church as part of the civil policy, and, of consequence, within the jurisdiction of the civil courts, and where, even in Scotland, Presbyterianism is the established religion under a like civil jurisdiction, yet that such is utterly un-American — not only unrecognized, but utterly repudiated by the American courts — I will now proceed to show by specific authorities.
In the case of Shannon et al. vs. Frost et al. (3 B. Mon., 254), wherein a majority of the Baptist Church in Frankfort, without charge, citation, or trial, expelled a minority, and which they insisted was irregular and invalid, and without any good cause, and therefore could not affect their property rights in the church house and lot belong*153ing to said congregation, of which they had theretofore constituted a part, this court, by Chief Justice Robertson, said: “ The rights of the parties in this case must depend on the terms and legal effect of the conveyance, and on the acts of the church for governing and preserving itself as a distinct Christian society, and on the common law of the land. What, then, are these rights as thus stated? This court, having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline or excision. Our only judicial power in the case arises from the conflicting claims of the parties to the church property, and the use of it; and these we must decide as we do all other civil controversies brought to this tribunal for ultimate decision. We cannot decide who ought to be members of the church, nor whether the excommunicated, have been justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of*expulsion as conclusive proof that the persons expelled are not members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court.
“For every judicial purpose in this case, therefore, we must consider the persons who were expelled by a vote of the church as no longer members of that church, or entitled to any rights or privileges incidental to, or resulting from, membership therein. * * * The judicial eye of the civil authority of this land of religious liberty cannot penetrate the veil of the church, nor can the arm of this court either rend or touch that veil for the forbidden purpose of vindicating the alleged wrongs of the exscinded members.”
Could a stronger case be well imagined requiring the interposition of the civil courts, had they the right to re*154gard the church organization as a civil contract, and all decisions in contravention thereof null and void?
The case of Gibson et al vs. Armstrong (7 B. Mon., 481) was a contest between different parties of a Methodist Church in Maysville, growing out of the ecclesiastical jurisdictional division of that church in the year 1844, a portion of the members adhering to the old jurisdiction of the General Conference of the Methodist Episcopal Church, whilst the other portion, with its church officers, together with the Kentucky Annual Conference, to which it belonged, adhered to the new jurisdiction of the Methodist. Episcopal Church, South.
This court, by Chief Justice Marshall, among many other things, in a lengthy review of the whole facts and case, said : “And we discover in them (rules of the church) no sanction that a minority of one of the societies of the church, separating itself from the major or organized portion, and assuming, at its own mere will, a new and independent organization, can, in its corporate form, claim any right of occupying their former house of worship, against the will of the remaining body, which, retaining the original organization, with the same officers and head, or their regularly appointed successors, and preserving the same position in the general organization, has, in point of fact, and in view of the law, these satisfactory evidences of its being the true society entitled to the use. Certainly the separating portion could not, by its own mere will, nor by assuming an internal organization conforming to the rules and discipline and usages of the church, nor by placing over itself a preacher of its own choice, nor by claiming to be the true and only society of the Methodist Episcopal Church belonging.to the place, become ipso facto an organized portion of the general body of the church. Until recognized by the proper *155authority of the church, and taken into connection according to its laws, it would stand ,as an isolated body, unconnected with the general organization, and independent of it.”
Again it said : “It is for the authorities of the church, in the first instance, to judge of an infraction of its laws, and to determine whether the ecclesiastical jurisdiction belonging to any particular body or functionary of the association had been forfeited by such infraction. The civil judge might greatly apprehend that he would be transcending his proper sphere if he were to interpose in the first instance to determine such a question, and to enforce his judgment upon it.”
These principles, so long recognized as part of Kentucky jurisprudence, and so unanimously approved by the jurists of the State, the churches, and people, should not be lost sight of or abandoned because- of the disturbances of the late attempted revolution. Besides, they are in perfect accord and harmony with the adjudications of our sister States, as manifested in the following cases, all of which involved kindred church questions: Deu vs. Bolton, 2 Green’s C. R., 322; American Primitive Society vs. Pellings et al., 4 Zabriskie, 659 ; German Reform Church vs. Seibert, 3 Barr, 291 ; Sutter vs. Trustees Dutch Reformed Church, 6 Wright, 503; Commonwealth vs. Green, 4 Whar., 599; Robertson vs. Bullions, 9 Barr’s S. C. R., 78.
It is remarkable that not a single case in Kentucky, until the late case of Watson vs. Avery (2 Bush, 336), ever suggested or determined the rights of church litigants on the idea that church constitutions, creeds, &c., were to be regarded as civil contracts; and not a single case, either American or British, which I have seen, has predicated their rights on any such principle. The only American decision brought to view in any of these *156chui'ch controversies which at all questions the validity of ecclesiastical adjudications relative to church constitutions, laws, and discipline, is the Vermont decision in Smith vs. Nelson (18 Vt., 511), and which, so far from predicating its disregard of the ecclesiastical decision upon the violation of the constitution and laws of the church as a civil contract, expressly repudiates this by the following explicit language. Said the judge delivering the opinion : “ I cannot recognize any constitution, laws, ordinances, or sentences of any ecclesiastical tribunal, or of any voluntary society, as having any efficiency or power over the civil rights, immunities, or contracts of individuals.”
What church is now willing to surrender its claim to divine origin, and place the same upon the basis of mere civil contracts between men ? Are even the Presbyterians of the South willing to concede this? Churches claiming divine origin can no more place their church constitution, laws, and powers on the basis of civil contracts than can they so place the holy word of God. If it is not a government authorized by, and deriving its power from, the Holy Scriptures and God, their author, then it is merely the work of men, and may be truly regarded as a civil contract, in the same light that human governments and constitutions are.
Nor can a civil court look beyond its internal organization and external relation, where it has such relations to other church judicatures, to ascertain the identity of the church, as was fully developed by this court in Gibson vs. Armstrong (7 B. M.), and still later in the case of Harper vs. Stron (14 B. M., 55), which was a litigation between contending parties of an African Church, each claiming to be tlm society of Asberry Chapel, to whose use the property had been conveyed, and which *157has many analogous points to the one now under consideration, and in which, like the present, the original deed was made in trust for the congregation called Asberry Chapel, without any reference to any external connection with any other church organization or jurisdiction. It, however, was under the superintendence of the Methodist Episcopal Church, South, with Harper as its pastor. Harper being expelled by the church authorities, his congregation went off with him, and continued to worship for some time under his superintendence, without connection with any other organization. Soon, however, both the congregation and their said pastor were received into the African Methodist Episcopal Church of the United States. Harper was sent by said church to another congregation, and Revel sent to this one. Harper, however, afterward returned to this congregation, and, being expelled from the African Methodist Church, induced a portion of its members to unite with him in organizing an independent Methodist Church; and, claiming to be the indentical old Asberry Chapel congregation, sued for the property. Revel still continued as the pastor of the remaining portion of the congregation, which also claimed to be the identical Asberry Chapel congregation ; so here was a case purely of identity.
This court said: But the society continued to exist as an organized society, with the same officers, the same pastor, and the same records. The party which felt itself driven to reorganize in the old organization, had never before been an organized body or society of Christains, and, notwithstanding the assumption of the old name and the mystery of “reorganizing in the old organization,” it cannot be, that, while that old organization remained complete and distinct,' and competent to the performance of its proper functions, and to the en*158joyment of its rights, it could be merged in or superseded by the new organization.
So has been the teaching of this court- through an unbroken current of decisions heretofore. When a congregation continues its local organization with the same officers, the same external jurisdictional connections, and adheres to the same articles of faith, it is impossible for the court to penetrate this veil, and to criticise the deliverances of its supreme tribunal, and then pronounce it disorganized, and say that seceding members organized by a different jurisdictional authority, though professing the same faith and church government, is the identical original church. This would set all our former decisions, and those of our sister States, utterly at defiance, apd involves a proposition which would be at once rejected by all churches.
But if we should be driven back to the time of the organization of this church in 1828, to ascertain its creed and identity, candor would compel the admission that Presbyterianism was then anti-slavery in sentiment and action. Nor do Gartin and his friends, who withdrew from the old society, which still remained with all the elders and other officers, still adhering to the General Assembly of the United States; and organized under the synodical jurisdiction which recognized no relation to said General Assembty, but professed to be independent of it, claim to be the identical original Bethel Union Church, but' do properly and legally claim to be entitled to participate in the use of said church property, as will now be shown.
There is a material and significant distinction between our statute of 1814, under which all previous decisions of this court as to the right of joint participation by contending parties have been heretofore made, and our *159Revised Statutes of 1850, and which, must govern this case, because the original deed has since been made.
The provisions of the statute of 1814, in case of a division or schism .for other cause than immorality, were that nothing in said act should be construed to “ authorize said trustees to prevent either of the parties so divided from using the house or houses of worship for the purposes of devotion;” nor were they to be construed “to authorize the minority, of any church having seceded from, or been expelled, or 'excommunicated, to interfere in any manner in their appointments for preaching or worship with any appointments for similar purposes, which may have been made by the body or major part of such church or congregation.”
As was said by this court in Gibson et al. vs. Armstrong, “ the trustees were prohibited from using their authority under the statute to prevent either party from a proportioned use,” because, as before said in the same case, they might be identified with one of the parties; but it did not mean to declare a right; whereas, by the Revised Statutes, it is positively and peremptorily enacted that the trustees “ shall permit each party to use the church;” and the next subdivision provides that the “ excommunication of one party by the other shall not impair such right, except it be done bona fide on the ground of immorality.” It is, therefore, palpable, that the latter enactment declared a legal right in all members, when a division or schism occurs, for anything else than immorality, to still continue in the enjoyment of the benefits of the trust, according to the numbers of each party. The restricted operation of the statute of 1814, as construed by the courts, rendered it almost inoperative and useless, which was doubtless intended to be remedied by the revision, not only in the change of lan*160guage on this subject, coupled with an express declaration of right, but also by that provision which declares that courts shall give it a liberal construction to make it accomplish the objects designed.
This statute is just in its provisions, wise in its policy, and should have a liberal construction to secure its equitable benefits. I have no doubt as to its proper application in this case, and, therefore, concur in the reversal of the judgment; and am for a direction to the court below to reject the present and to set up the destroyed deed; and further, to secure to each party the alternate use of the church property pro rata, according to the number of communicant members adhering to each party at the time of their separation.